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The "Plain View" Doctrine

Written by Joe Petrocelli

The “Plain View” doctrine allows law enforcement officers to seize contraband or evidence of a crime without first obtaining a search warrant. It is a search that puts very few constraints on an officer and often yields very productive arrests. Every officer should have excellent working knowledge of what a plain view search is and what its minimum requirements are.

The Supreme Court spoke on the plain view doctrine in Coolidge v. New Hampshire (1971). The case involved a particularly brutal murder of a 14-year-old girl. The New Hampshire attorney general saw fit to take charge of police activities relating to the murder investigation. When the police applied for a warrant to search suspect Coolidge’s car, the attorney general, acting as justice of the peace, authorized the warrant. The Supreme Court eventually held that the warrant was invalid because the attorney general was not a neutral and detached magistrate.

The court outlined its three requirements for the plain view doctrine to be invoked. First, the law enforcement officer must lawfully be in the viewing area. Evidence cannot be in plain view from an area prohibited by the Constitution. Second, the officer must discover the evidence inadvertently. The officer could not have known beforehand where the evidence was located. Finally, it must also be immediately apparent to the officer that the item is contraband. The officer must have probable cause to believe the item is somehow associated with a criminal activity.

In Texas v. Brown (1983), a Fort Worth police officer stopped an automobile at a routine driver’s license checkpoint. As he was asking for the driver’s license, the officer observed an opaque party balloon, knotted near the tip. The item fell from the driver’s hand onto the seat. Through the officer’s training and experience, he was aware the illegal drugs were commonly packaged in such balloons.

As the driver was looking for his license, the officer noticed small plastic vials, loose white powder and an open bag of party balloons in the glove compartment. Ultimately, the balloon was seized and found to contain suspected heroin; subsequent search of the vehicle revealed other contraband.

The defendant filed a motion to suppress the evidence. Suppression was initially denied, but the Texas Court of Criminal Appeals reversed the decision, ruling that the evidence should have been suppressed. The court believed, based on the Coolidge case, that not only must the officer be legitimately in a position to view the object, but it also must be immediately apparent to the police that they have evidence before them. The officer here had to know that incriminating evidence was before him when he seized the balloon.

The Supreme Court disagreed with the Texas Court of Criminal Appeals and found that the officer’s seizure was lawful. The court held that the officer had probable cause to believe the tied off balloon contained an illegal drug. The court further held that a law enforcement officer may rely on his training and experience to draw inferences and make deductions that might elude an untrained person. All officers should attend in-service classes to be aware of current contraband transportation trends.

The court also noted that the officer noticing and articulating the presence of the vials, white powder and balloons in the glove compartment revealed further suggestions that the nontransparent party balloon contained an illegal drug. This decision modified the immediately apparent requirement from the plain view doctrine.

The second requirement articulated in the Coolidge case was examined in Horton v. California (1990). The Supreme Court eliminated the inadvertence requirement. This court was concerned with examining the subjective state of mind of an officer and what he expected to find.

Based on the Horton case, the two requirements for a plain view search are 1) the officer must lawfully be in the viewing area, and 2) the officer must have probable cause to believe the evidence is associated with criminal activity. These are the two conditions necessary for an officer to make a seizure without a warrant.

Officers must be careful as to how they articulate their findings in the arrest report or during courtroom testimony. Officers often state they located contraband as the result of a plain view search, which is a legally inaccurate term. In the absence of a prior intrusion and with no infringement on reasonable privacy expectations, there was no search within the meaning of the Fourth Amendment (Byrnes, 2003).

A more accurate term would be “plain view observation” or “plain view notice.” By removing the word “search,” the officer moves away from Fourth Amendment scrutiny and must only prove the two conditions articulated in the Horton decision.

Detective Commander Joseph Petrocelli is with the Passaic County (Wayne), NJ Sheriff’s Department. He can be reached at joepetro2003@hotmail.com.

Published in Law and Order, Jul 2006

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